TortsRubenstein v. Doe No. 1 (2017) _ Cal.5th _, 2017 WL 3691550: The California Supreme Court reversed the Court of Appeal decision finding that plaintiff had timely filed her sexual molestation claim in 2012, arising from events that occurred in 1993 and 1994. The California Supreme Court ruled that a government tort claim must be presented not later than six months after the accrual of the cause of action (Government Code, section 911.2(a)), the cause of action in this case accrued at the time of the alleged molestation, and the California Legislature’s 2002 amendment of Code of Civil Procedure section 340.1, did not relieve claimants from complying with the government claims statute when suing a public entity defendant. (August 28, 2017.)

CALIFORNIA COURTS OF APPEAL

ArbitrationCortez v. Doty Brothers Equipment Company (2017) _ Cal. App.5th _, 2017 WL 3483719: Electing not to decide several difficult jurisdictional issues, the Court of Appeal decided to treat consolidated appeals as a writ petition. The Court of Appeal granted the writ in part, and denied the writ in part, modifying the trial court’s order granting a motion to compel arbitration in an action alleging wage and hour violations and a representative claim under the Private Attorneys General Act of 2004 (PAGA, Labor Code, section 2698 et seq.). The Court of Appeal granted the writ in part, finding that plaintiff’s action for failure to timely pay wages upon separation from employment (Labor Code, section 203), and his unfair competition action (Business & Professions Code, section 17200), were not encompassed in the arbitration provision in a collective bargaining agreement (CBA). The rest of the writ was denied because the remaining causes of action were subject to arbitration, and the trial court’s termination of class claims was proper on the ground the CBA did not authorize classwide arbitration. (C.A. 2nd, filed August 15, 2017, published September 1, 2017.)Harshad & Nasir Corporation v. Global Sign Systems (2017) _ Cal.App.5th _, 2017 WL 3484761: The Court of Appeal reversed the trial court’s order confirming an arbitration award against respondent Friendly Franchisees Corporation (FFC) for $1,154,793.72 in damages, $702,093.86 in prejudgment interest, and $1,142,596.20 in costs, and affirmed the trial court’s order vacating the award as to four affiliates of FFC (the Affiliates) who the arbitrator added as joint and several obligors under the award. The Court of Appeal ruled that the general rule, that the arbitrator’s decision cannot be reviewed for errors of fact or law, did not apply because the parties had agreed to limit the arbitrator’s authority by providing for review of the merits in the arbitration agreement. On the merits, the Court of Appeal ruled that substantial evidence did not support the award, and an alleged contract to be performed over a threeyear period violated the statute of frauds. Further, the arbitrator exceeded his authority by deciding a claim that FFC had not agreed to arbitrate. The Court of Appeal deemed appeals from the orders regarding motions for attorney fees to be petitions for writ of mandate, and directed the trial court to vacate the orders and make different orders denying the motions. (C.A. 2nd, August 15, 2017.)OTO, L.L.C. v. Kho (2017) _ Cal.App.5th _ , 2017 WL 3599067: The Court of Appeal reversed the trial court’s order denying a motion to compel arbitration. The trial court denied the motion to compel arbitration because it found the arbitration agreement was substantively unconscionable because it failed to provide the employee with an affordable and accessible alternative forum as required by Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II). The Court of Appeal disagreed, ruling that the arbitration proceeding under the agreement satisfied the Sonic II requirements of affordability and accessibility. Because defendant was required by Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 to pay for the arbitration, the affordability requirement was satisfied. The absence of free representation did not make a wage claim arbitration unaffordable. The lack of an express employee-favorable attorney fee provision, similar to Labor Code section 98.2(c), did not cause the agreement to be unconscionable because the agreement required the application of another similarly favorable provision of the Labor Code. Because the proceeding outlined by the arbitration agreement was similar to civil litigation, it was no more complex than the process that would often be required to resolve a wage claim under “Berman” procedures. (C.A. 1st, August 21, 2017.)Sprunk v. Prisma LLC (2017) _ Cal.App.5th _, 2017 WL 3614265: The Court of Appeal affirmed the trial court’s denial of a motion to compel arbitration in a putative class action. Defendant waived its right to seek arbitration by filing and then withdrawing a motion to compel arbitration against the named plaintiff, and then waiting until after a class had been certified to seek arbitration against class members. (C.A. 2nd, August 23, 2017.)

Attorney FeesSukumar v. City of San Diego (2017) _ Cal.App.5th _, 2017 WL 3483653: The Court of Appeal reversed the trial court’s order denying petitioner’s attorney fees. Even though the trial court denied the writ petition under the Public Records Act (Government Code, section 6250 et seq.), petitioner was the prevailing party because petitioner’s action resulted in respondent releasing copies of previously withheld documents. (C.A. 4th, August 15, 2017.)

Civil ProcedureSviridov v. City of San Diego (2017) _ Cal.App.5th _, 2017 WL 3203271: The Court of Appeal affirmed the trial court’s order awarding costs to defendant in an employment action by a former police officer. Plaintiff argued on appeal that defendant was not entitled to costs based upon Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 99 and Government Code section 12965(b), because there was no proof that plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit. Plaintiff also argued that, under the Public Safety Officers Procedural Bill of Rights Act (POBRA, Government Code, section 3300 et seq.), defendant could not obtain an award of costs for the defense of plaintiff’s POBRA claim unless the action was frivolous or brought in bad faith. The trial court properly awarded costs to defendant because plaintiff rejected three Code of Civil Procedure section 998 statutory settlement offers and did not obtain a more favorable result. (C.A. 4th, filed July 27, 2017, published August 15, 2017.)

EmploymentAviles-Rodriguez v. Los Angeles Community College District (2017) _ Cal.App.5th _, 2017 WL 3712199: The Court of Appeal reversed the trial court’s order sustaining a demurrer, without leave to amend, of a complaint alleging violation of the Fair Employment Housing Act for denial of tenure and termination based on racial discrimination. In light of Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, the Court of Appeal ruled that the one-year limitations period for plaintiff to timely file a Department of Fair Employment and Housing (DFEH) complaint began to run from the last day of his employment, and because plaintiff filed his DFEH complaint within that period it was timely. (C.A. 2nd, August 29, 2017.)

Landlord TenantSleep EZ v. Mateo (2017) _ Cal.App.5th Supp. _, 2017 WL 2984900: The Los Angeles Superior Court Appellate Department affirmed the trial court’s judgment for defendants in an unlawful detainer case. When a tenant mails rent at a landlord’s direction and, through no fault of the tenant, the landlord does not receive it, the tenant is not in default in the payment of rent in an unlawful detainer action. (Appellate Division, Los Angeles Superior Court, July 13, 2017.)

Real Property (Quiet Title)Deutsche Bank National Trust v. Pyle (2017) _ Cal.App.5th _, 2017 WL 2981804: The Court of Appeal affirmed the trial court’s order granting summary judgment in favor of plaintiff. The trial court properly ruled that defendants did not qualify as bona fide purchasers as a matter of law based on a void default judgment. The void default judgment did not quiet title to the property. (C.A. 4th, July 13, 2017.)

TortsGrotheer v. Escape Adventures (2017) _ Cal.App.5th _, 2017 WL 3772580: The Court of Appeal affirmed the trial court’s order granting summary judgment to defendants in an action for damages arising from the crash landing of a hot air balloon. The trial court found the action was barred by the primary assumption of risk doctrine. The Court of Appeal affirmed, but for different reasons. It ruled that the defendant balloon tour company was not a common carrier subject to a heightened duty of care; the primary assumption of risk doctrine barred plaintiff’s claim that the balloon pilot negligently failed to slow the balloon’s descent to avoid a crash landing; and company had a duty to provide safe landing instructions to its passengers, but the undisputed evidence regarding the crash demonstrated that any failure on company’s part to provide such instructions was not the cause of plaintiff’s injury. (C.A. 4th, August 31, 2017.) n

Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.

About the Author: Monty A. McIntyre follows his passions for the law and serving others by serving as a mediator, arbitrator and motion referee to help individuals, businesses and lawyers obtain rapid, reasonable resolution of disputes. He is also the Publisher of McIntyre’s California Civil Law Update and can be reached at 619-990-4312 or monty.mcintyre@gmail.com.